Anthony Kennedy on Drugs

Supreme Court Justice (nominated by Pres. Reagan 1988)

Sentencing rules change allows crack sentence reductions.

Justice Kennedy wrote the Court's decision on FREEMAN v. UNITED STATES on Jun 23, 2011:

The defendant entered into an agreement with the prosecution to plead guilty to crack cocaine possession. Following this plea, the sentencing guidelines federal judges must consider when they impose prison terms were retroactively revised to lower the prison time required in crimes involving cocaine base [crack cocaine], which were higher than those for powder cocaine. The law permitted defendants who were sentenced based upon the old guideline to seek the lower prison sentence if the guideline was revised downward.

HELD: Delivered by KENNEDY, joined by GINSBURG, BREYER & KAGAN

The Court must determine whether this defendant may take advantage of the lowering of the sentencing guidelines for the [crack cocaine] offense he was sentenced for. Even though this defendant was sentenced in accordance with an agreement, the Court finds that district court judges have a duty to consider the sentencing guidelines at all times, includinwg when deciding whether to accept a guilty
plea that is contingent upon one of these agreements. Since the guidelines are the starting point for all sentencing decisions, even a defendant who agrees to a sentence may seek to have his sentence revised after a guidelines change.

CONCURRED: SOTOMAYOR concurs in the judgment

A sentence under one of these agreements is based upon the agreement itself, not on the judge's calculation of the guidelines. However, the agreement in this case expressly used the guidelines sentencing range to establish the term of imprisonment. When an agreement uses the guidelines, a defendant may seek reduction of his prison term based upon a guideline revision.

DISSENT: ROBERTS dissents; joined by SCALIA, THOMAS & ALITO

A sentence based upon an agreement is based upon the agreement alone, whether or not the sentencing guidelines were considered, and a defendant so sentenced should not be allowed the opportunity for a sentencing revision when the guidelines are changed.

No tactile inspection by police for drugs.

Justice Kennedy joined the Court's decision on BOND v. UNITED STATES on Apr 17, 2000:

A Texas Border Patrol Agent boarded a bus to check the immigration status of its passengers. He squeezed a canvas bag above Mr. Bond’s seat and noticed that it contained a “brick-like” object. After petitioner admitted owning the bag and consented to its search, the Agent discovered a “brick” of methamphetamine.

Held:

(Rehnquist, joined by Stevens, O’Connor, Kennedy, Souter, Thomas, and Ginsburg) The Agent physical manipulation of petitioner’s carry-on bag violated the Fourth Amendment’s proscription against unreasonable searches. The Government’s assertion that by exposing his bag to the public, petitioner lost a reasonable expectation that his bag would not be physically manipulated is rejected. [Previous precedents allowing searches] involved only visual, as opposed to tactile, observation. Physically invasive inspection is simply more intrusive than purely visual inspection.

Dissent:

(Breyer, joined by Scalia)
Does a traveler who places a soft-sided bag in the shared overhead storage compartment of a bus have a “reasonable expectation” that strangers will not push, pull, prod, squeeze, or otherwise manipulate his luggage? I believe that he does not.

The Fourth Amendment protects against government intrusion that upsets an “actual (subjective) expectation of privacy” that is objectively “reasonable.” But an individual cannot reasonably expect privacy in respect to objects or activities that he “knowingly exposes to the public.” Nor can I accept the majority’s effort to distinguish “tactile” from “visual” interventions. Whether tactile manipulation (say, of the exterior of luggage) is more intrusive or less intrusive than visual observation (say, through a lighted window) necessarily depends on the particular circumstances, [which would] lead to a constitutional jurisprudence of “squeezes,” thereby complicating further already complex Fourth Amendment law. For these reasons, I dissent.

No roadblocks with drug-sniffing dogs.

Justice Kennedy joined the Court's decision on CITY OF INDIANAPOLIS v. EDMOND on Nov 28, 2000:

Indianapolis operates vehicle checkpoints on its roads in an effort to interdict unlawful drugs. Mr. Edmond was stopped at such a checkpoint, and filed suit, claiming that the roadblocks violated the Fourth Amendment’s rule that a search or seizure is unreasonable absent individualized suspicion of wrongdoing.

Held:

(O’Connor, joined by Kennedy, Souter, Ginsburg, Breyer, & Stevens)We previously held that brief, suspicionless seizures at highway checkpoints for the purposes of combating drunk driving and intercepting illegal immigrants were constitutional. We now consider [applying that to] illegal narcotics. Because the checkpoint program’s primary purpose is indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment.

Dissent:

(Rehnquist, joined by Scalia & Thomas)The State’s use of a drug-sniffing dog, according to the Court’s holding,
annuls what is otherwise plainly constitutional under our Fourth Amendment jurisprudence: brief, standardized, discretionless, roadblock seizures of automobiles, seizures which effectively serve a weighty state interest with only minimal intrusion on the privacy of their occupants. Because these seizures serve the State’s accepted and significant interests of preventing drunken driving and checking for driver’s licenses and vehicle registrations, and because there is nothing in the record to indicate that the addition of the dog sniff lengthens these otherwise legitimate seizures, I dissent.

Additional dissent:

(Thomas)I am not convinced [the original drunk-driving & immigration roadblock cases] were correctly decided. I rather doubt that the Framers would have considered “reasonable” a program of indiscriminate stops of individuals not suspected of wrongdoing. But Mr. Edmond did not advocate the overruling [of the original cases, so I join in the dissent].